Winter Layoffs in Ontario: The 13-Week Rule and the ROE

A temporary layoff is not a termination. In Ontario, it becomes one when it runs too long, and the date that counts is not the day you notice. The province’s Employment Standards Act, 2000 (ESA) is the law that sets the minimum standards an employer must meet. Under it, a layoff that runs past the legal limit counts as a termination from its first day. From that date, you owe notice or termination pay.

For a landscaping, pool or exterior crew sent home in November and brought back in April, that limit is closer than it looks. A temporary layoff in Ontario is normally capped at 13 weeks in any 20, and a winter off is closer to 20. Whether that limit bites depends on the work your crew does, and on what you keep paying or put in writing before they go home; the Record of Employment, vacation pay and recall then follow from the same dates.

The 13-week rule, and why a winter is longer

Section 56 of the Employment Standards Act, 2000 defines a temporary layoff as one of not more than 13 weeks in any period of 20 consecutive weeks. A week counts as a week of layoff when the employee earns less than half of what they would earn in a regular work week.

A layoff can run longer, up to 35 weeks in any 52, but only if one of these applies:

• you keep making substantial payments to the employee;
• you keep paying into a legitimate pension, group insurance or benefit plan for them;
• they receive supplementary unemployment benefits;
• you recall them within a time approved by the Director of Employment Standards;
• for a non-union employee, you recall them within the time set in an agreement between you and them.

For a seasonal crew, the realistic routes are the second and the last: keeping benefit premiums going, or a written recall agreement. Both come back below.

Since 27 November 2025, a non-union layoff can also run past 35 weeks, up to 52 weeks in 78. That needs a written recall agreement and the Director’s approval, applied for at least 30 days before it is needed.

Here is how the calendar works on a typical season, as an illustration. A crew is laid off on Friday 13 November 2026 and recalled on Monday 5 April 2027. That is about 20 weeks off, well past 13 in 20. It stays a temporary layoff only if something on the list above applies. If none does, the ESA treats each employee as terminated on 13 November, and termination pay is owed as if you had let them go that day.

Who the rule actually covers

This is where trades split, so it is worth placing each person on your crew before you count any weeks.

Construction employees are outside it. Under O. Reg. 288/01, a construction employee is not entitled to ESA notice, termination pay or severance. The definition in O. Reg. 285/01 covers employees working at the site on “constructing, altering, decorating, repairing or demolishing buildings, structures, roads” and other works. A roofing crew or a siding crew fits that plainly, so the 13-week limit has no ESA termination-pay consequence for them. The common law still applies, which is covered below.

Landscape gardeners and pool installers are not construction employees for this purpose. Their ESA exemptions cover hours of work, overtime and public holidays. They do not cover termination or severance. A lawn-care or garden-maintenance crew keeps the full 13-week protection.

Between the two sits the hard case: hardscaping crews building retaining walls and patios, and crews building pools rather than servicing them. Whether that is “constructing structures at the site” depends on the facts, and no regulation settles it. If a large part of your crew’s work is hardscape, ask the Employment Standards Information Centre (1-800-531-5551) before you rely on the construction exemption.

What keeps a long winter layoff temporary

For a landscaping or pool crew, the practical routes out of the 13-week limit are two.

The first is benefits. Say you run a group health or dental plan. If you keep paying the employer’s premiums through the layoff, it can run up to 35 weeks in 52. The ESA speaks of a “legitimate” plan: premiums for a real group plan, not a token payment.

The second, for non-union staff, is a recall agreement: an agreement with the employee setting the time within which you will recall them. Put it in writing, with the latest recall date. If the recall date then slips, the protection slips with it.

Neither route helps if your employment contracts do not allow layoffs in the first place. The ESA does not require you to give written notice of a temporary layoff, or a reason for it. But the government’s ESA guide warns that a layoff, even if intended to be temporary, “may result in constructive dismissal if it is not allowed by the employment contract”. That is a common-law claim for damages, separate from the ESA. The Court of Appeal’s 2022 decision in Taylor v. Hanley Hospitality left the question to be decided case by case. If your offer letters say nothing about seasonal layoffs, that is worth fixing for next spring’s hires, and worth a lawyer’s look for this winter’s.

The Record of Employment

The layoff paperwork that cannot wait is the Record of Employment. An employee has an interruption of earnings once they have gone seven consecutive days without work or insurable earnings from you, and the ROE is due soon after:

• Electronic ROE: within five days after the end of the pay period in which the interruption began. If you run 13 or fewer pay periods a year, the limit is 15 days after the first day of the interruption, if that is earlier.
• Paper ROE: to the employee within five days of the interruption, or of when you became aware of it.

This is the paper your crew will be waiting on the week they leave, because their Employment Insurance (EI) application comes next. Service Canada’s ROE guide covers the blocks. Use Code A, shortage of work, which the guide says applies when “a season is over”. Block 14 takes the expected recall date, or “Unknown” if you have none yet. If you pay out vacation pay because of the layoff, it goes in Block 17A.

Your crew then applies for EI themselves, and should do it straight away: applying more than four weeks after the last day of work can cost them benefits. They need between 420 and 700 insurable hours, depending on the unemployment rate where they live.

This year there is one date to check. Ottawa’s temporary waiver of the one-week EI waiting period covered new claims starting between 30 March 2025 and 10 October 2026. Unless it is extended, winter claims made after that date serve the waiting week again. Check the EI temporary measures page before you tell your crew what to expect.

Vacation pay, holidays and the recall

A temporary layoff does not end employment, so it does not by itself trigger the final-pay deadline. Pay wages for work done on the regular pay day. Vacation pay is 4% of wages, or 6% after five years. You pay it under the usual rules: before the vacation is taken, on each cheque if the employee has agreed in writing, or at another time they agree to. Settle which before the last pay run of the season, so you can answer when someone asks whether their vacation pay comes now or in spring. If the layoff does become a termination, outstanding wages and vacation pay are due within seven days or on the next regular pay day, whichever is later.

A public holiday during a temporary layoff can still earn holiday pay. That applies to employees covered by the public holiday rules who work their last scheduled day before the layoff and their first after it. Landscape gardeners and pool installers are outside those rules entirely, so this does not apply to them.

When spring comes, recall in writing, with a start date, and keep a copy. If the layoff ran past 13 weeks, keep the proof that it stayed temporary: the benefit premiums you paid or the recall agreement you signed. The crew coming back does not prove it.

Before the last cut of the season

• Sort each person on the crew: construction employee, landscape or pool, or unclear. Ask the Employment Standards Information Centre about the unclear ones.
• Count the weeks. If the planned layoff runs past 13 in 20, decide now which condition will keep it temporary: continued benefit premiums, or a written recall agreement with each non-union employee.
• Check your employment contracts or offer letters for a right to lay off.
• Diarize the ROE deadline for each person, with Code A and the expected recall date.
• Decide how vacation pay is handled, and tell the crew about the EI waiting week.

Getting this right costs an afternoon in November. Getting it wrong can mean termination pay for a whole crew you fully intended to bring back. The guide to Canadian charge-out rates shows how quickly that kind of cost eats into a season’s margin. For the other Ontario employer obligation that follows your crew, see the WSIB guide for Ontario contractors.